Yes, it can be difficult, but it is possible to trademark a color. There are a number of famous examples including Tiffany blue and the UPS company’s brown. Indeed, there are at least two well-known shades of pink that have been registered as trademarks in the U.S., including a certain color pink — Pantone 210 — associated with fiberglass building insulation held by Owens-Corning and a magenta pink — Pantone Rhodamine Red U — associated with T-Mobile phones. Interestingly, probably the most famous pink associated with a product has NOT been granted trademark registration in the U.S. — the pink often called “Barbie Pink — Pantone 219 C — used by Mattel for its Barbie products of dolls and accessories.
As noted, obtaining trademark registration for a color has a higher bar. First, trademarks must be distinctive to be eligible for registration. The U.S. Trademark Office has held that colors are not distinctive in themselves. As such, there is no automatic registration for a color.
There are two types of distinctiveness: inherent and acquired. Since colors do not have inherent distinctiveness, then, to be registered, a color must obtain “secondary meaning.” And, an applicant to register a color trademark must prove that the secondary meaning exists. That, of course, can happen. It just requires time and effort and constant protection of the color from infringement by others. “Secondary meaning” is something that occurs in the minds of consumers and is defined, basically, as a state of mind where the color has become closely associated with a product or brand in the minds of consumers. Marketing and use over time will create that connection between the color and the product/brand. That is why time and effort are required when considering the registration of a color trademark.
In addition to distinctiveness, a color trademark registration application must also satisfy the requirements of uniquely identifying the source of the product and not be functional. Identifying the commercial source of a particular product is the essential purpose of a trademark. As such, if the color does not serve that purpose, then the color cannot be registered. Note that the “market” can be a narrow market for consumers. Since no other building insulation was colored, the color pink served to uniquely identify the insulation sold by Owen-Corning.
The color also cannot be functional, which generally has two parts: it does not make the product easier to use or less costly to make. Again, using pink fiberglass insulation as our example, we can intuitively see that adding the color pink does not make the insulation work better, easier to install, or anything else functional. Further, adding the color does not make the product less expensive to manufacture. As such, the Owens-Corning pink passed the “not functional” test.
There is one final possible barrier to registering a color trademark: the monopoly problem. Trademarks, by their nature create tiny monopolies. Certain words, phrases, logos, designs, and other things can only be used by certain commercial firms and companies. In theory, over enough time, with enough trademarks creating enough little monopolies, trade, and commerce will be entirely destroyed because everyone will be able to sue everyone else for infringement. This is obviously fantastical, but there really IS a limited number of colors that consumers will be able to associate with products and brands. As such, the U.S. Trademark Offices DOES take a longer and more searching look at applications to register color trademarks.
Contact the Trademark Attorneys at Revision Legal
For more information, contact the experienced Trademark Lawyers at Revision Legal. You can contact us through the form on this page or call (855) 473-8474.
